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Why Microsoft? Why? December 7, 2011

Posted by vubetube in Opinion, Thoughts and Ideas, Video Game.
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Recently an update came out for the Xbox 360 that involved a change in GUI from the Xbox Experience to one that is more akin Windows Phone 7/Windows 8 (or at least the development shots of it). But along side with this GUI (General User Interface) change came a EULA (End-User License Agreement) update for users, one that I have trouble with especially section 18 although my issue with it largely lays with section 15 through 18 but the other stuff makes sense. Also if you want to see where I got the EULA/TOU (Terms of Use) stuff: http://www.xbox.com/en-US/legal/livetou 

15. WE MAKE NO WARRANTY.

We provide the Service “as-is,” “with all faults,” and “as available.” We do not guarantee the suitability, reliability, availability, accuracy or
timeliness of information available from the Service, or that the Service will be uninterrupted, secure, error-free or that data loss will not occur. You
acknowledge that computer and telecommunications systems are not fault-free and occasional periods of downtime will occur. We give no express warranties,
guarantees, or conditions. We disclaim all warranties with regard to the Service, including any implied warranties (e.g., those of merchantability, fitness
for a particular purpose, workmanlike effort, title and non-infringement). You may have additional consumer rights under your local laws that this contract
cannot change.

- So if you pay for Xbox Live Gold, you can’t hold Microsoft accountable for any downtime because no technology is perfect even if you are paying them for this service. But aside from early on hiccups that were probably from the switch from the old model of Xbox Live (from the original Xbox with paying users who had online and non-paying users who didn’t have online to one where paying members were called gold and could play online while nonpaying members were silver and could use some online features but couldn’t play online.) I feel that if you pay for a service to be up and running, no matter how imperfect it is, they have some sort of responsibility to the consumer to inform them of any down time for whatever reason.
16. LIABILITY LIMITATION.

You can recover from us for all successful claims only direct damages up to a total amount equal to your Service fee for one month. You cannot recover any
other damages, including consequential, special, indirect, incidental, or punitive damages and lost profits.

This limitation applies to anything related to this contract, for example:
• the Service;
• loss of data;
• your content, third party content (including code), third party programs, or third party conduct;
• viruses or other disabling features that affect your access to or use of the Service;
• incompatibility between the Service and other services, software, or hardware;
• delays or failures you may have in initiating, conducting, or completing any transmissions or transactions in connection with the Service in an accurate
or timely manner; and
• claims for breach of contract; breach of warranty, guarantee, or condition; misrepresentation; omission; strict liability; negligence; or other tort.

It also applies even if this remedy does not fully compensate you for any losses, fails of its essential purpose or we knew or should have known about the
possibility of the damages.

Nothing in these terms except the agreement to arbitrate and class action waiver in Section 18.1 will affect the statutory rights of any consumer. Nothing in
these terms will exclude or restrict liability for death or personal injury arising from our negligence, fraud, gross negligence or willful intent. Some or
all of these limitations or exclusions may not apply to you if your state, province, or country does not allow the exclusion or limitation of incidental,
consequential or other damages.

-This basically outlines what they can be liable for in case of bad things happening and what you’ll get as stated by the opening line “You can recover from us for all successful claims only direct damages up to a total amount equal to your Service fee for one month. You cannot recover any
other damages, including consequential, special, indirect, incidental, or punitive damages and lost profits.” According to Microsoft most Gold memberships cost about 5 dollars a month.

Basic prices of membership

Basic prices of membership

17. Changes to the Service; If We Cancel the Service.

We may change the Service or delete features of the Service at any time for any reason. If you do not agree to these changes, then you must cancel and stop
using the Service.

A particular feature may be a pre-release version – a beta, for example – and may not work correctly or in the way a final version might work. We may
significantly change the final version or decide not to release a final version.

We may cancel or suspend your use of the Service at any time without notice and for any reason. Upon Service cancellation, your right to use the Service
stops right away. Your ability to access and use Third-Party Features also stops right away. Our cancellation of the Service will not change your obligation
to pay all charges made to your billing account. If we cancel the Service in its entirety without cause, then we will refund to you on a pro-rata basis the
amount of your payment for the portion of your Service remaining at the time of cancellation. Sections 6 (for amounts incurred before termination), Section
11, Sections 15-18 and those Sections of this contract that by their terms apply after termination of this contract will survive any termination of this
contract. If you have confidentiality obligations related to the Service, those obligations remain in force (for example, you may have been a beta tester).”

-Section 17 probably came out of the Playstation 3 fiasco of removing features, but this worries me as the Xbox 360 started off stripped of features (possibly because those other features could be done on another machine with another Microsoft product although coming soon seems to mitigating some of the missing things.) While not much of an issue currently, it could become a problem if “coming soon” applications suddenly start disappearing because of their incompatibility (which is unlikely.)

18. General Legal Terms, Including Binding Arbitration.

18.1. BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER FOR U.S. RESIDENTS. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS CONCERNING ANY
DISPUTES BETWEEN YOU AND MICROSOFT IF YOU LIVE IN THE UNITED STATES FOR PURPOSES OF SECTION 18.1 AND ITS SUBSECTIONS, “MICROSOFT” MEANS MICROSOFT CORPORATION
AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS.

18.1.1. DISPUTE. As used in this contract, “Dispute” means any dispute, claim, demand, action, proceeding, or other controversy between you and Microsoft
concerning the Service and your or Microsoft’s obligations and performance under this contract or with respect to the Service, whether based in contract,
warranty, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, concealment, omission, negligence, conversion, trespass,
strict liability, and product liability), statute (including, without limitation, consumer protection and unfair competition statutes), regulation,
ordinance, or any other legal or equitable basis or theory. “Dispute” will be given the broadest possible meaning allowable under law.

18.1.2. INFORMAL NEGOTIATION OF DISPUTES. You and Microsoft agree to attempt in good faith to resolve any Dispute before commencing arbitration. Unless you
and Microsoft otherwise agree in writing, the time for informal negotiation will be 60 days from the date on which you or Microsoft mails a notice of the
Dispute (“Notice of Dispute”) as specified in Section 18.1.3. You and Microsoft agree that neither will commence arbitration before the end of the time for
informal negotiation.

18.1.3. NOTICE OF DISPUTE. If you give a Notice of Dispute to Microsoft, you must send by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One
Microsoft Way, Redmond, WA 98052-6399, a written statement setting forth (a) your name, address, and contact information, (b) your Windows Live ID or
gamertag, if you have one, (c) the facts giving rise to the Dispute, and (d) the relief you seek. A form is available at http://www.xbox.com/notice. If Microsoft
gives a Notice of Dispute to you, we will send by U.S. Mail to your billing address if we have it, or otherwise to your e-mail address, a written statement
setting forth (a) Microsoft’s contact information for purposes of efforts to resolve the Dispute, (b) the facts giving rise to the Dispute, and (c) the
relief Microsoft seeks.

18.1.4. BINDING ARBITRATION. IF YOU LIVE IN THE UNITED STATES, YOU AND MICROSOFT AGREE THAT IF YOU AND MICROSOFT DO NOT RESOLVE ANY DISPUTE BY INFORMAL
NEGOTIATION UNDER SECTION 18.1.2 ABOVE, ANY EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION IN ACCORDANCE WITH THE
ARBITRATION PROCEDURES IN SECTION 18.1.7 BELOW. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION, YOU ARE GIVING UP THE RIGHT TO
LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, YOU UNDERSTAND AND AGREE THAT ALL DISPUTES
WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE AWARD (DECISION) WILL BE BINDING AND FINAL, EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL
ARBITRATION ACT. ANY COURT WITH JURISDICTION OVER THE PARTIES MAY ENFORCE THE ARBITRATOR’S AWARD.

THE ONLY DISPUTES NOT COVERED BY THE AGREEMENT IN SECTION 18.1 TO NEGOTIATE INFORMALLY AND ARBITRATE ARE DISPUTES ENFORCING, PROTECTING, OR CONCERNING THE
VALIDITY OF ANY OF YOUR OR MICROSOFT’S (OR ANY OF YOUR OR MICROSOFT’S LICENSORS’) INTELLECTUAL PROPERTY RIGHTS.

18.1.5. AVAILABILITY OF SMALL CLAIMS COURT. Notwithstanding Section 18.1.4 , you have the right to litigate any Dispute in small claims court, if all
requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. Notwithstanding
Section 19, you agree to bring a Dispute in small claims court only in your county of residence or King County, Washington .

18.1.6. CLASS ACTION WAIVER. YOU AND MICROSOFT AGREE THAT ANY PROCEED­INGS TO RESOLVE OR LITIGATE ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR
OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR MICROSOFT WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A
REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR MICROSOFT ACTS OR PROPOSES TO ACT IN A
REPRESENTATIVE CAPACITY. YOU AND MICROSOFT FURTHER AGREE THAT NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION
OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, MICROSOFT, AND ALL PARTIES TO ANY SUCH ARBITRATION OR PROECCEDING.

18.1.7. ARBITRATION PROCEDURE. The arbitration of any Dispute will be conducted by, and according to the rules and procedures of, the American Arbitration
Association (the “AAA”). Information about the AAA, and how to commence arbitration before it, is available at http://www.adr.org or by calling 1-800-778-7879. A
form is available at http://www.xbox.com/arbitration. The Commercial Arbitration Rules of the AAA will govern the arbitration. If you are an individual consumer and
use the Service for personal or household use, or if the value of the Dispute is $75,000 or less, the Supplementary Procedures for Consumer-Related Disputes
of the AAA will also apply. If the AAA rules or procedures conflict with the provisions of this contract, the provisions of this contract will govern. You
may request a telephonic or in-person hearing by following the AAA rules and procedures. Where the value of a Dispute is $10,000 or less, any hearing will be
telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator has the power to make any award of damages to the
individual party asserting a claim that would be available to a court of law. The arbitrator may award declaratory or injunctive relief only in favor of the
individual party asserting a claim, and only to the extent required to provide relief on that party’s individual claim.

18.1.8. ARBITRATION LOCATION. You agree to commence arbitration only in your county of residence or in King County, Washington. Microsoft agrees to commence
arbitration only in your county of residence.

18.1.9. COSTS AND ATTORNEY’S FEES. In a dispute involving $75,000 or less, Microsoft will promptly reimburse your filing fees, and pay the AAA administrative
fees and the arbitrator’s fees and expenses, incurred in any arbitration you commence against Microsoft unless the arbitrator finds it frivolous or brought
for an improper purpose. Microsoft will pay all filing and AAA administrative fees, and the arbitrator’s fees and expenses, incurred in any arbitration
Microsoft commences against you. If a Dispute involving $75,000 or less proceeds to an award at the arbitration after you reject the last written settlement
offer Microsoft made before the arbitrator was appointed (“Microsoft’s Last Written Offer”), and the arbitrator makes an award in your favor greater than
Microsoft’s Last Written Offer, Microsoft will pay you the greater of the award or $1,000, plus twice your reasonable attorney’s fees, if any, and reimburse
any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in
arbitration, as determined by the arbitrator or agreed to by you and Microsoft. In any arbitration you commence, Microsoft will seek its AAA administrative
fees or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper
purpose. Microsoft will not seek its attorney’s fees or expenses from you. In a Dispute involving more than $75,000, the AAA rules will govern payment of
filing and AAA administrative fees and arbitrator’s fees and expenses. Fees and expenses are not counted in determining how much a Dispute involves.

18.1.10. IF CLASS ACTION WAIVER ILLEGAL OR UNENFORCEABLE. If the class action waiver (which includes a waiver of private attorney-general actions) in Section
18.1.6 is found to be illegal or unenforceable as to all or some parts of a Dispute, whether by judicial, legislative, or other action, then Section 18.1 and
its subsections will not apply to those parts. Instead, those parts of the Dispute will be severed and proceed in a court of law, with the remaining parts
proceeding in arbitration. The definition of “Dispute” in Section 18.1.1 will still apply to this contract. You and Microsoft irrevocably consent to the
exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA, for all proceedings in court under this Section 18.1.10.

18.1.11. YOUR RIGHT TO REJECT CHANGES TO ARBITRATION AGREEMENT. Notwithstanding anything to the contrary in this contract, Microsoft agrees that if it makes
any change to Section 18.1 (other than a change to the notice address in Section 18.1.3) while you are authorized to use the Service, you may reject the
change by sending us written notice within 30 days of the change by U.S. Mail to the address in Section 18.1.3. By rejecting the change, you agree that you
will informally negotiate and arbitrate any Dispute between us in accordance with the most recent version of Section 18.1 before the change you rejected.

18.1.12. SEVERABILITY. If any provision of Section 18.1 and its subsections, other than Section 18.1.6 (class action waiver), is found to be illegal or
unenforceable, that provision will be severed from Section 18.1, but the remainder of Section 18.1 will remain in full force and effect. Section 18.1.10 says
what happens if Section 18.1.6 (class action waiver) is found to be illegal or unenforceable.

18.1.13. SURVIVAL OF PROVISIONS. The provisions of Section 18.1 will survive termination of the contract or the provision of the Service to you.

18.2.Interpreting the Contract. All parts of this contract apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of
this contract as written. If this happens, we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The
rest of this contract won’t change. Sections 18.1.10 and 18.1.12 say what happens if parts of Section 18.1 (arbitration and class action waiver) are found to
be illegal or unenforceable. Sections 18.1.10 and 18.1.12 prevail over this Section 18.2 if inconsistent with this Section 18.2. This is the entire contract
between you and us regarding your use of the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service. The
Section titles in this contract do not limit the other terms of this contract. If you are accessing the Service within Germany, the agreement located at
http://www.xbox.com/de-DE/legal/LiveTOU applies instead of this contract.

18.3.Assignment and Transfer. Microsoft may assign, transfer, sell, rent or lend or otherwise dispose our rights and obligations under this contract, in
whole or part, at any time without notice to you. You may not assign this contract or any part of it, or any rights to use the Service or any part of the
Service, either temporarily or permanently, to any other party. Any attempt to do so is void.

18.4. No Third Party Beneficiaries; Microsoft Affiliates. This contract is solely for your and our benefit, except for certain Sections of this contract
which are for the benefit of Microsoft’s affiliates and owners of content available through the Service. As a result, Microsoft’s affiliates and owners of
content available through the Service are entitled to enforce this contract. Except as stated above, this contract does not create any enforceable rights by
anyone other than you and Microsoft and permitted successors.

18.5.No Waiver. We enforce this contract, the Code of Conduct and other user content and conduct rules set forth in this contract, and exercise our rights
and remedies at our sole discretion. If we fail to enforce such rules, rights, or remedies in some instances it is not a waiver of our right to do so in
other instances. These rules do not create any private right of action for you or any third party or any reasonable expectation that the Service will not
contain any content that is prohibited by such rules.

18.6.Claims and Disputes Must Be Filed Within One Year in Arbitration or Court. To the extent permitted by law, any claim or Dispute (see Section 18.1.1 for
definition of Dispute) arising out of or relating to this contract or the Service must be filed within one year (i) in an arbitration proceeding under
Section 18.1, (ii) in small claims court, or (iii) in court if Section 18.1 permits the Dispute to be filed in court instead of arbitration. The one-year
period begins on the date when the claim or Dispute first could be filed. Any claim or Dispute that is not filed in an arbitration proceeding or court within
that time is permanently barred. This Section applies to you and your successors and assigns. It also applies to us and our successors and assigns.

18.7.Notices to Parties. You may notify us as stated in customer support for the Service. We do not accept e-mail notices. This contract is in electronic
form. We may send you information about the Service, additional information, and information the law requires us to provide in electronic form. We may
provide required information to you: (i) by e-mail at the address you specified when you signed up for the Service; (ii) by access to a Microsoft web site we
identify; or (iii) by access to a pre-designated Microsoft web site. Notices e-mailed to you will be deemed given and received when the e-mail is sent. As
long as you can access and use the Service, you will be able to receive such notices. If you do not consent to receive any notices electronically, you must
stop using the Service.

18.8.Other Notices.

Copyright and Trademark Notices. All contents of the Service except user-generated and third party content are Copyright © 2011 Microsoft and/or its
suppliers, One Microsoft Way, Redmond, Washington 98052-6399 U.S.A. All rights reserved. We or our suppliers own the title, copyright and other intellectual
property rights in the Service, software, and content. Microsoft, Windows, Windows Live, Windows logo, MSN, MSN logo (butterfly), Bing, Xbox, Xbox 360, Xbox
LIVE, Kinect, the Xbox logos and other Microsoft products and services may also be either trademarks or registered trademarks of Microsoft in the United
States and other countries. The names of actual companies and products mentioned in this contract may be the trademarks of their respective owners. Any
rights not expressly granted in this contract are reserved. Certain software used in certain Microsoft web site servers is based in part on the work of the
Independent JPEG Group. Copyright © 1991-1996 Thomas G. Lane. All rights reserved. “gnuplot” software which may be used in certain Microsoft web site servers
is copyright © 1986-1993 Thomas Williams, Colin Kelley. All rights reserved.

Notices and Procedure for Making Claims of Copyright Infringement. Notifications of claimed copyright infringement should be sent to Microsoft’s Designated
Agent pursuant to Title 17, United States Code, Section 512(c)(2). WE WILL NOT RESPOND TO INQUIRIES THAT ARE NOT RELEVANT TO THE FOLLOWING PROCEDURE. For
details and contact information see Notice and Procedure for Making Claims of Copyright Infringement at http://www.microsoft.com/info/cpyrtInfrg.htm .

Financial Notice. Microsoft is not a broker/dealer or registered investment advisor under U.S. federal securities law or securities laws of other
jurisdictions. Microsoft does not advise individuals as to the advisability of investing in, purchasing, or selling securities or other financial products or
services. Nothing contained in the Service constitutes an offer or solicitation to buy or sell any security. Neither Microsoft nor its licensors of stock
quotes or index data endorse or recommend any particular financial products or services. Nothing contained in the Service is intended to constitute
professional advice, including but not limited to, investment or tax advice.

Notice about the H.264/AVC Visual Standard and the VC-1 Video Standard. Software provided with the Service may include H.264/MPEG-4 AVC and/or VC-1 decoding
technology. MPEG LA, L.L.C. requires this notice:

THIS PRODUCT IS LICENSED UNDER THE AVC AND THE VC-1 PATENT PORTFOLIO LICENSES FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (A) ENCODE VIDEO IN
COMPLIANCE WITH THE ABOVE STANDARDS (“VIDEO STANDARDS”) AND/OR (B) DECODE AVC AND VC-1 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-
COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE SUCH VIDEO. NONE OF THE LICENSES EXTEND TO ANY OTHER PRODUCT REGARDLESS OF
WHETHER SUCH PRODUCT IS INCLUDED WITH THIS SOFTWARE IN A SINGLE ARTICLE. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION
MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE http://www.mpegla.com

For clarification purposes only, this notice does not limit or inhibit the use of the software provided under this contract for normal business uses that are
personal to that business which do not include: (i) redistribution of the software to third parties; or (ii) creation of content with the VIDEO STANDARDS
compliant technologies for distribution to third parties.

Section 18, basically defines how you’d go about suing Microsoft and where most of the concern/hate is coming from. Why try to block a Class Action cases, why force non-content users to go one on one with the company rather than pooling together their resources and stories in hopes of correcting past problems so people further down the line don’t have to do the same song and dance, one by one.

Honestly there are probably worse EULA/TOUs floating out there, but I haven’t seen an “opt-out” or optioning out of this EULA/TOU aside from either fully accepting it or completely rejecting it, no “clauses” that allow the users to accept most of it while not abide by another part. Who knows if this would be held up in a court-case but overall it feels like a big step in a very wrong direction. It makes me wonder if the following generation of consoles will all have something this scary where companies use EULA/TOUs to scare and intimate their users into being complaint rather than trying to protect them and themselves.

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